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Madras High Court · body

1991 DIGILAW 168 (MAD)

Diraviyam Pillai v. Kamalam Animal alias Deivanai Ammal and others

1991-02-22

BELLIE

body1991
Judgment :- The plaintiff who lost his case in the trial court is the appellant. His suit declaration of his title and for recovery of possession of the suit properties and for profits has been dismissed. 2. The eight items of suit properties originally belonged to one Piramanayagam Pillai respect of the suit properties he executed a registered settlement deed Ex.A 29.11.1943 in favour of his mother and wife giving them joint life-interest without any of alienation or creating any mortgage or charge and enjoining on them to do certain in his family temple by spending Rs.25 every year out of the profits of the properties. two ladies died during the life-time of Piramanayagam. After their lifetime the properties were to devolve as stated in the settlement deed. It appears Piramanayagam himself exe-cuted sale deeds in favour of the defendants stating in the sale deeds themselves the settle- ment deed executed by him is not valid, and in “ pursuance of those sale the defendants are in possession. Piramanayagam had no right to execute such sale. The plaintiff’s paternal grandfather is the brother of the Piramanayagam Pillai’s father. He is an agnate of Piramanayagam Pillai. He is the only male relation of Piramanayagam Pillai. As per the settlement deed only he will be entitled to the suit properties. The deeds executed by Piramanayagam are not valid since he had already under the settlement deed given up his right. The defendants are trespassers. On these grounds the suit has filed for declaration of title and recovery of possession, and mesne profits. 3. The first defendant contended that the property in his occupation has been purchased him from the settlees and neither Piramanayagam nor the plaintiff has any right in property. He denied the alleged relationship of the plaintiff with Piramanayagam. He contended that in any way he has perfected title by adverse possession. The second third defendants have, in respect of the properties in their possession, contended that alleged settlement deed by Piramanayagam is not valid as it is opposed to the rule perpectuity and ” it was not acted upon, and they purchased the properties Piramanayagam Pillai. The plaintiff has no right in the properties. They also contended the suit is barred by limitation. The plaintiff has no right in the properties. They also contended the suit is barred by limitation. Defendants 4, 6 and 8 in their joint written statement contend that the fourth defendant purchased the property in his possession from Arunachalam Pillai on 25.10.74 and the sixth defendant has purchased the property occupation from one Paramasivam Pillai and. two others on 10.5.1971 and these vendors had in their turn purchased the properties under court sales held on 18.7.1952. defendant has obtained an othi and is in possession under it. She has perfected title adverse possession. Defendants 5 and 7 in their written statement would contend that fifth defendant purchased a property from Piramanayagam Pillai for valuable cou- and the Piramanayagam’s daughter is still alive and the plaintiff cannot claim any Seventh defendant has pleaded that he purchased the property in his occupation Ponnammal-daughter of Piramanayagam on 16.1.1966 and in any event he has prefected title by adverse possession. 4. On the above pleadings and on consideration of the evidence the trial court held that settlement deed Ex.A-13, dated 29.11.1943, executed by Piramanayagam Pillai is true valid and acted upon, and a charge has been created for doing Pooja in the temple spending a sum of Rs.25 from the income of the properties. It further held Piramanayagam Pillai had a daughter by name Ponnammal and as per the settlement after the life-time of his mother and wife the said daughter Ponnammal could be entitled the properties and not the plaintiff. He further held that it is true that the plaintiff agnate of Piramanayagam Pillai as stated by him. He also held that in consideration finding that the plaintiff cannot have title to the suit properties, the question whether defendants have perfected title by adverse possession against the plaintiff will not arise. These findings the trial court, in the result, dismissed the suit but without costs. The plaintiff has filed the appeal. 5. The defendants have filed cross objection as against the findings of the trial court are against them, and against the disallowance of costs. 6. Mr.K.V.Subramaniam, learned counsel for the appellant-plaintiff contends that the court has grievously erred in interpreting the settlement deed Ex.A-13 and holding that order the lifetime of the mother and wife of the settlor only the settlor’s daughter would entitled to the property and not the plaintiff. 6. Mr.K.V.Subramaniam, learned counsel for the appellant-plaintiff contends that the court has grievously erred in interpreting the settlement deed Ex.A-13 and holding that order the lifetime of the mother and wife of the settlor only the settlor’s daughter would entitled to the property and not the plaintiff. While as Mr.M. N.Padmanabhan, counsel for the respondent-defendants who are the cross objectors would contend that if it is to be held that only the plaintiff would be entitled to the properties and daughter of the settlor as per the terms of the settlement deed, the defendants perfected title to the properties by adverse possession and therefore the plaintiff claim any right. No other points were argued. Therefore the abovesaid two points the learned counsel fail for consideration in the appeal. 7. Now the relevant portion of the settlement deed which has been extracted in the reads as follows: It is clear from a reading of this that the settlor Piramanayagam’s mother and wife will the suit properties during their life-time and they have been enjoined to spend Rs.25 annum for the temple described in the second schedule in the settlement deed. They been inhibited not to in anyway dispose of or encumber the properties. 8. The controversy arises only with regard to the subsequent recital as to the will after the settlor’s mother and wife. In this regard the word Puthirasanthanam important. According to the plaintiff Tuthirasanthanam’ only means male issue but to the defendants it includes female issue also. To my mind there is absolutely no in understanding this word because the word ‘Puthiran’ means son and Tuthirasanthanam ’ means only male issues and it cannot, by any stretch of imagination, mean female issue also. As against the word ‘puthiran’ meaning male issue the word is there meaning female issue. Therefore when it is stated Tuthirasanthanam’ it onlymale issue. The meaning given to Tuthirasanthanam ’ in the dictionary (Tamil Lexicon Part I, Published by the University of Madras) is male issue. 9. A careful reading of the recitals of the settlement deed would show that the settler primarily interested in the performance of the ‘ Varush-abdeeka ’ Pooja in the Karthigai every year in the temple by spending Rs.25 from the income, of the properties. 9. A careful reading of the recitals of the settlement deed would show that the settler primarily interested in the performance of the ‘ Varush-abdeeka ’ Pooja in the Karthigai every year in the temple by spending Rs.25 from the income, of the properties. From this it appears highly probable that the settlor wanted the properties to be held male heir who will be in the village and do the pooja rather than a female heir who her marriage go to some other village and therefore she might not be able to do the and lose interest in doing pooja. 10. Another circumstance that has to be considered is that there is no dispute properties were held by Piramanayagam Pillai as his ancestral property, and that case, as argued by Mr.Subramaniam, in the year of settlement i.e., in 1943 the had no right in the ancestral property and could be thinking of it the settlor thought writing only male issue. The further recital in the document is, if Piramanayagam no heir his nearest male agnates will have the right to possess and enjoy the properties. must be remembered here that from his mentioning of nearest male agnate in the his having no heir it would stand to reason that when he had said Tuthirasanthanam would have meant by that only a male heir. Thus it is manifest that the settlor intended only his male heirs would be entitled to the properties. 11. The learned trial Judge also would agree that the word ‘Puthirasanthanam masculine word and this would mean only the male heir but however, stating that heir has not been expressly excluded in the document he would hold that the ‘Puthirasanthanam’ would include daughters also. I cannot at all agree with this reasoning the learned trial Judge. When the settlor has stated that his male heir would be entitled the properties, to make his intention clear he need not state that his female heirs will entitled to it. 12. Now, it has been held by the trial court that the plaintiff is the nearest male Piramanay-agam, and that is not disputed. Therefore as per the document only he entitled to the properties and not Ponnammal, daughter of Piramanayagam disagreeing with the finding of the trial court I hold that under the document the plaintiff be entitled to the properties. 13. Therefore as per the document only he entitled to the properties and not Ponnammal, daughter of Piramanayagam disagreeing with the finding of the trial court I hold that under the document the plaintiff be entitled to the properties. 13. Coming to the next question i.e., whether the defendants have perfected adverse possession, I am of the view that the defendants would succeed on this therefore the plaintiff cannot get declaration of title and possession. Now having Ex.A-13 settlement deed in 1943 Piramanayagam Pillai had no right whatsoever properties. Therefore he had no right to sell the properties. Now all the sale deeds in favour of some of the defendants are either by Piramanayagam Pillai, or by his Gomathiammal and his wife Gnanasoundariam-mal or by any one of them, and some Piramanayagam Pillai’s daughter Ponnammal. As stated above, Piramanayagam Pillai right whatsoever after the settlement deed. Gomathiammal and Gnanasoundariammal prohibited by the settlement deed itself from selling or mortgaging the properties held above that Ponnammal had no right. Therefore, the defendants have been in possession of the properties under invalid sale deeds or mortgage deeds. Gomathiammal 31.3.1960 and Gnanasoundariammal died on 23.10.1964. Until Gnanasoundariammal on 23.10.1964 the plaintiff had no right to seek for possession from them, since accrues only then. From then on the possession of the defendants either under the sale deeds or invalid mortgage deeds are adverse to the right of the plaintiff under Sec.65 of the Limitation Act he ought to have got possession of those within 12 years from 23.10.1964. The suit has been filed only on 6.1.1979, i.e., long 12 years. Therefore it is clear that all the defendants have perfected title by possession and by reason of that the plaintiff has lost his right entitled to under settlement deed. Hence the suit is liable to be dismissed. Therefore, the dismissal of by the trial court even though on some other reason has to be held to be correct. Thus is no merit in the appeal. 14. Now in the cross objection the defendants have also raised a point that while dismissing the suit the trial court should have awarded costs to them, but it has wrongly disallowed costs. Thus is no merit in the appeal. 14. Now in the cross objection the defendants have also raised a point that while dismissing the suit the trial court should have awarded costs to them, but it has wrongly disallowed costs. Considering the fact that the trial court has on a wrong finding that under settlement deed the plaintiff has no right, dismissed the suit and now purely on the finding that the defendants have perfected title by adverse possession the appeal is dismissed, I of the view that it would be just and proper not to allow any costs either in the trial court here. 15. In the result, the appeal is dismissed without costs, and the cross objection with regard to the question of adverse possession is allowed, but with regard to the question of costs is dismissed. There will be no order as to costs in the cross objection. Appeal dismissed/Cross Objection allowed.